Introduction

Often, in looking at pressure injury legal cases that have a malnutrition allegation, evidence-based interventions have been implemented. Examples of evidence-based interventions include:

• Malnutrition screening
• Registered dietitian nutritionist (RDN) involvement
• Encouraging meal and fluid intake
• Calorie counts
• Handfeeding, snacks
• Diabetic management
• Appropriate laboratory work
• Supplementation
• Appetite stimulants
• Weight monitoring
• Consideration of enteral or parenteral nutrition
• Enlisting family or caregiver assistance
• Providing preferred foods

Despite reasonable interventions, unintended weight loss can occur and frequently is an allegation in the complaint, alleging that standards of care have been breached, and even suing for “wrongful death” as a consequence.

Unintended Weight Loss and Failure to Thrive

Unintended weight loss is a major risk factor in pressure injury and other skin breakdown development. The Centers for Medicare & Medicaid Services specifically cite patient weight loss of 5% within 30 days or weight loss of 10% within 6 months as a risk factor for malnutrition.¹ Could the cause be failure to thrive (FTT)? Among nursing home residents and persons of advanced age, FTT is frequently listed in their diagnosis list. What is FTT? In 1991, the United States National Institute of Aging described FTT as a:²

…syndrome of weight loss, decreased appetite and poor nutrition, and inactivity, often accompanied by dehydration, depressive symptoms, impaired immune function, and low cholesterol.

UpToDate, a subscription online resource for health care providers, describes FTT as features of frailty “frequently compounded by cognitive impairment and/or functional disability” and also as “a point further along a geriatric functional continuum that is closer to full dependence and death, with frailty as a mid-point between independence and pre-death.”³

Reasons for a Lawsuit

Seeing a loved one’s health status deteriorate or experiencing a loved one’s death is extremely stressful, and to some people it is unfathomable. Reasons given for suing usually involve a genuine sense of anger and shock, searching for an explanation, wanting to hold someone accountable, financial concerns, or seeking “justice” for a perceived wrong. Often, their older loved one had a long list of diagnoses that could include malignant disease, a combination of cardiac, pulmonary, and renal issues, dementia, frequent infections, diabetes, psychiatric or psychological issues, and FTT, among others. Lack of communication often forms the basis of many lawsuits. Frequently, the lawsuit’s focus is the pressure injury! Why? The answer can be simple: a pressure injury is visible (unlike internal organs) and is shocking to the average lay person. In court, graphic pictures in front of a jury can lead to guilty verdicts with high awards. For this reason, pressure injuries have become the “low hanging fruit” of lawsuits and the bread and butter of many medical malpractice attorneys. Just look at some of the ads.

Failure to Thrive and Lawsuits

FTT is a somewhat confusing term, and it is important that all patients with an FTT diagnosis receive a “thorough workup for treatable conditions, rather than a preemptive palliative approach.”³Effective nutritional interventions need to be implemented to avoid further weight loss. It is essential to continue management of underlying chronic conditions, as long as those measures are part of the overall goals of care. However, for patients with continued decline despite optimal medical management of treatable conditions, perhaps a diagnosis of FTT “marks an appropriate time for the clinician to engage patients and families/other loved ones in discussions about goals of care.”³ This discussion becomes particularly important during retrospective chart evaluations in medical malpractice suits, with a recognition, if appropriate, that the pressure injury itself was NOT the cause of additional morbidity and mortality, but rather was part of the syndrome of FTT. The components of FTT are associated with a very poor prognosis that includes skin failure and unavoidable skin breakdown and can be clearly predictive of mortality. To hopefully prevent further deterioration in patients with FTT and avoid a lawsuit, clinicians should consider the following interventions, according to UpToDate³:

• Perform a thorough history and physical examination to ensure that all treatable medical conditions are addressed and treated within current patient goals of care.
• Enlist a multidisciplinary team that includes bedside nurses, social workers, dietitians, dentists, physical and occupational therapists, and speech therapists.
• Implement the dietary interventions previously mentioned, such as malnutrition screening, supplementation, and weight monitoring, among others.
• Treat any signs or symptoms of depression. Treatment of patient depression can improve appetite. Involve psychiatry if needed.
• Patients with advanced dementia lose the ability to chew, swallow, and manage oral secretions. Providing food for comfort may be an option, by perhaps liberalizing diets to match patients’ preferences more closely.
• As FTT advances, a palliative care approach should be considered, including hospice evaluation.

Conclusion

Given the potential consequences of FTT, recognition and diagnosis of this phenomenon are important components of care in older adults. Regardless of status, health care providers should implement and document all appropriate measures within patient goals of care. One of the key factors in lawsuits is a lack of communication with family members, who maintain that they were not informed in a timely manner about their loved one’s health status and prognosis. Great communication is key to hopefully preventing lawsuits!

Key Takeaways

• Clinicians should monitor and treat patient weight loss. Management of patient weight loss is crucial to maintain the health of older adults and to prevent and treat pressure injuries.
• Malnutrition is almost always part of pressure injury lawsuits. It is then important to recognize and document advancing frailty leading to possible FTT, by acknowledging its implications and the reality of the patient’s prognosis and possible outcomes.

References

1. Centers for Medicare & Medicaid Services. Accessed September 23, 2022. https://www.cms.gov/
2. Sarkisian CA, Lachs MS. Failure to thrive. Ann Intern Med. 1996;124:1072.
3. UpToDate. Accessed June 28, 2022. www.uptodate.com

About the Author

Heidi H. Cross, MSN, RN, FNP-BC, CWON, is a certified Wound and Ostomy Nurse in Syracuse, NY. She has extensive experience caring for wound and ostomy patients in acute care as well as in long term care facilities. Currently, she is employed by CNY Surgical Physicians consulting for nursing homes in the Syracuse area, and has served as an expert witness for plaintiff and defense attorneys.